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Maintenance - Changes After the case of Shah Bano

A long history of maintenance in itself, women have always been considered less than men, whether in pre-Islamic Arabia or now. So it was necessary that some such laws should be made so that women can be given the rights they are entitled to. Maintenance is one of those rights. Which (Maintenance) means that the husband provides every facility to the wife, whether it is food, shelter or clothing, during the time of marriage ,after the divorce and after the death of the husband. We have different laws in every religion for maintenance such as Hindu Adoption and Maintenance Act in Hindus and Sharia Laws in Muslims.

If we talk about pre- Islamic Arabia, then we will know how bad the women's condition was. There was no proper facility for their foods or shelter they were treated as chattle or property, Bought and sold them whenever you want.

To eliminate these things from the society many laws has been came with some new modification. Before the Muslim women (Protection of rights on women) ACT 1986, there were no proper laws by which a women can obtained divorce , this law enacted because of lot of criticism, people were not ready to accept the judgement of Shah Banu because this judgement affecting their personal laws, then this act enacted and gave some privilege to people.

Under Muslim laws in India, maintenance is known as Nafqah', which means the amount spent by a man on his family. It includes the primary necessities like food, shelter and clothing. A Muslim man has the duty to maintain his wife under Muslim laws. Under divorce laws, maintenance is paid by the husband to his wife when she is unable to sustain herself on her own after divorce. The laws relating to maintenance are different under the personal laws, however, every law conserves the right of a woman to get maintenance from her husband during her marriage as well as post-divorce.
Person entitled to maintenance:
  1. Wife
  2. Descendents
  3. Ascendents
  4. Other relations.

Maintenance of Wife under Islamic Laws

The right to maintenance of a Muslim woman is absolute and not conditional on whether she can maintain herself or not. In this regard, Muslim laws of maintenance are highly different from Hindu laws that lay down the requirement of a wife's inability to maintain herself to get maintenance from her estranged husband. A good divorce attorney in India can be consulted to understand the laws relating to maintenance under different religious personal laws in India.

To summerise , the wife loses her right to maintenance in the following circumstances:
  1. She is minor , incapable of consummation.
  2. Refuses free acess to the husband at all reasonable times.
  3. She is disobedient.
  4. Refuses to live with him in the conjugal home, without a reasonable excuse.

A Muslim woman's right to claim maintenance is laid down under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under the Act, a divorced Muslim woman is entitled to the following from her former husband:
Reasonable and fair maintenance within the Iddat period.
  • Reasonable and fair maintenance to the children born before or after divorce, for a period of 2 years from the date the child is born.
  • The amount of Mahr or dower agreed to be paid to the wife.
  • Any property received by her from her parents, friends or husband and his relatives.
A wife who is not maintained by her husband or anyone on her behalf, can hire a divorce lawyer in India who is well-versed in Muslim laws and file an application with a Magistrate that has jurisdiction over the area where she resides. The Magistrate on the basis of such application can order the husband to pay maintenance to his wife.

Muslim laws do not provide for a provision for maintenance to a divorced wife once the Iddat period is over. The right to get maintenance begin from the date she comes to know about the divorce or the day she ceases to be the wife of her estranged husband. However, the wife has the remedy to take a legal action against the husband under the Criminal Procedure Code. For this, a Muslim woman can consult with top divorce attorneys in India who can help her in filing a maintenance petition under CrPC.

Maintenance may be studied in three topics:

  • Maintenance during the subsistence of marriage
  • Maintenance of a divorced wife
  • Maintenance of a widow

Maintenance during the subsistence of Marriage:

The husband becomes liable to maintain the wife from the date when the wife attains the puberty and not before that. The husband bound to maintain her so as long as she is obedient and faithful to him. The husband is bound to maintain her even though she have sufficient means of maintain herself may be without means. If a muslim wife is living separately from the husband may claim maintenance against him ( if husband treats her with cruelty, or if he marries to the second wife without the consent of first wife or if he has not paid prompt dower to her or if he liveswith a concubine).

In Itwari v. Asghari, it was held that by the Allahabad high court that if the husband has remarried with the second wife, the first wife would be entitled to live separately from the husband and claim maintenance against him.

Maintenance of a divorced Wife:

Under the muslim law , a divorced wife was entitled to obtain maintenance from her husband only upto the period of iddat.

Iddat Period:

Iddah or Iddat is an Arabic term which means period of waiting and is observed by Muslim women. It is a period of chastity which a Muslim woman is bound to observe after the dissolution of her marriage due to the death of her husband or by divorce before she can lawfully marry again. The reason behind observing iddat period is to ascertain whether the woman is pregnant or not and to acknowledge the certainty of paternity.

Iddat period varies in different cases:
  1. a divorced woman observes it for 3 months whereas a woman whose husband has died observes it for four lunar months and ten days after the death of her husband, whether the marriage was consummated or not.
  2. Iddat period lasts for divorced woman who is pregnant till the time she gives birth or miscarriage.
  3. If a woman is pregnant at the time of husband's death, she observes iddat for a complete year consisting nine months for pregnancy and three months of iddat period.
In case of Mohammad Ahmad v. Shah Bano Begum the supreme court held that although the muslim personal law limits the husbands liability to provide maintenance for his divorced wife till the iddat. But it would not be pricinciple of muslim law. Finally court conclude that if the divorced wife unable to maintain herself after the iddat period, she is entitled to recourse to section -125 CrPC and can get maintenance even after divorce.

Maintenance of a widow muslim women:

A widow is not entitled to obtain maintenance from the property of her deceased husband, because her right of inheritece supervences.
Therefore it is very clear from the above mentioned points that wife is entitled to get something as a maintenance during, after, and even death of the of husband.

Condition of women before Shahbano case:

As per theories of Muslim Law, they consider the man to be superior to the woman. They truly believed that the woman is not at all capable to maintain themselves as they are directly dependant on their husbands. In Muslim Law, the relation of husband and wife is considered as the most important one. That relation exists only if the wife is faithful and obey her orders. In Muslim law, the married women have the right to get maintenance from her husband even if she refuses to access to her husband and cannot be consummated, but if she is too young and lives with her mother and father she is not entitled to get maintenance.

Muslim law provides the right to wife to get maintenance if she lives separately due to the cruel nature of her husband and non-payment of dower. But she cannot claim maintenance during the widowhood or iddat.

Prior the divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only. But the judgement given in the Shah Bano case enables divorced women to get maintenance from her husband on reasonable ground and from the family of the husband after his death.

Under Muslim law, Prior the divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only.

Muslim Women (Protection of Rights on Divorce), 1986:

After the shabanu case this act came with some up new changes such as in this case court held that it does not say that mahr is a consideration for divorce, or is the sum referred to in section 127(3)(b) CrPC; it does not lay down that no maintenance is to be paid to the divorcee after the iddat period or that she is to be abondoned for the life after the iddat; it does not make the secular law (like Crpc) inapplicable to muslims,ut does not overrule the shahbanu case.

Supreme Court in Shah Bano held that if she is unable to maintain herself after the period of iddat, she is entitled to have recources to section 125 Crpc. This decision has led to some controversy as regards the obligation of the muslim husband to pay maintenace to th divorced wife. In a progressive trend setting judgement, the kerala High court has recently held that section 3 of the act does not require divorced wife must be unable to maintain herself before she can claim amounts under section 3 of the act .
Section 3 of the act entitles a divorced woman:
  • Reasonable and fair provision
  • Maintenance to her
  • Provision and maintenance to her children for two years
  • Mahr amount and
  • All the properties given to her before, at the time of and after her marriage.

Under Muslim law, Prior the divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only. But the judgement was given in the Shah Bano from the family of the husband after his death case enables divorced women to get maintenance from her husband on reasonable ground and But after the judgement of the case.

The government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. In this Act, divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of meher only. Finally, all the case which are pending in court related to Muslim women and their right to Maintenance under Section 125 of Code of Criminal Procedure were disposed of.

In Mohd. Ahmed Khan v. Shah Bano Begum Case In this case, the husband gives divorce to his wife, she was 68 years old and has five children. Under Muslim law, divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only. the Shah Bano Begum files a case and claims the maintenance under the Section 125 of the Code of Criminal Procedure where she gets successful and gets the maintenance from her husband on reasonable ground and from the family of the husband after his death.

After this historical judgment of Shah Bano Begum, the Muslim Community started criticizing the court of law as according to them the judgment directly affect the provision of their personal law. According to their law, divorced women do not have the right to claim maintenance after the period of iddat and gets the amount of mehr only.

But the government on that time under the pressure of the Muslim community bring a law which directly overrules the judgment. The government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986. By the virtue of this Act, the old traditional law which was followed by the Muslim community gets the authority.

Interim Maintenance

The question of interim maintenance came before the court in H. Sirajuddin v. Shaziya alias Afsana, Here the wife moved an application for maintenance , the husband raised the plea that he has divorced his wife the court held that-
The fact that whether the husband has divorced her or not has to be decided by through and detailed trial at the time of dealing with the main suit. Till then wife is entitled to maintenance. Wife also has the care and custody of female born child of the parties. She is also entitled to get maintenance. Hence, on the facts and circumstances of the case, the wife and the child is entitled to get interim maintenance.

Past maintenance

Under the shafei school of thought the wife is allowed to recover maintenance from the date when the cause of action arises, i.e. from the date when the husband neglected her or failed to provide maintenance to her.

In Abdul Futteh Maulvie v. Zabunnessa Khatun, the husband deserted the wife in January 1878 and sued him in November 1878 claiming (i). past maintenance at the rate of rs. 100 per month since January 1878, and (ii) future maintenance at the same rate as long as he should not cohabit with her.

The Calcutta high court held that the maintenance should have been made payable to the wife only from the date of the decree, and (ii) that is was payable only during the continuance of the marriage.

In case of K. P. Abdul Kareem v. P. K. Nabeesa, the kerala high court distinguished between Hanafi school TheShafei school rule and held the according to shafei school, arrears of maintenance can be recovered by the wife counting from the date when her husband wrongfully refused and neglected to maintain her. Under the Shafei school, the wife is entitled to past maintenance though there may be no agreement in respect thereof.

In kunbimariam v. Oram vectil Mammu, the court held ; A divorced muslim wife belonging to shafei seat is entitled to past maintenance. There is a difference between Hanafi law and Shafei law on this point. And in Shafei law, the maintenance is a debt on husband even if it was not decreed by quazi.

Childrens rights of maintenance

Legitimate child – the maintenance of infantchild rests upon the father. The maintenance of the woman who suckles an infant rests on him to whom the infant is born.
Thus, a father is bound to maintain his sons until they attain puberty, and his daughters until they are married. He laso responsible for the upkeep of his widowed or divorced daughter, or a child in the custody of the mother.

Illegitimate child – Section 488 of CPC, 1908 however , did bind such father to pay up to 500 rs per month by the way of maintenance. The father would be liable to pay this amount even if the mother refuses to surrender the illegitimate child.

In a case of Sukha v. Ninni, the court held that an agreement to maintain an illegitimate child, for which the Muhammadan Law as such makes no provisions, will in my opinion not have the effect of defeating the provisions of any law.

As a matter of fact, maintenance of illegitimate children has been statutorily recognised under section 488 of CrPC in our country and it isin consonance with this wholesome policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences.

In Pavitri v. Katheesumma, it is, however, not open to a court to award maintenance under section 488 unless expressly asked for.:
Right to maintenance ceases:
  • At puberty or 15 years, according to muslim law or
  • At 18 years, according to the Indian majority Act, 1875.
  • There is difference of opinion as to whether majority for the purpose of maintenance is attained on puberty or at the age of 18 years. The former view has been recommended by a majority of writers and hence should be accepted as correct.

Conclusion

So according to Hanafi school a women is only entitled for maintenance up to the period of iddat while shafei school states that husband to bound to give to his wife past maintenance as well. Father is bound to maintain his child or daughter ,for his son he has to maintain him till he attain the puberty which mentioned in Muslim law is 15 years but its varries from person to person.

Father has to maintain his daughter till the time of her marriage after that she will have no right on him or on his property but if a wife is capable to maintain herself still her husband is bound to give her maintenance according to section 3 of Muslim women (Protection of Women's right on divorce ), Act. Maintenance can be permanent or temporary, interim or past. And mehr /dower is different from maintenance if a husband is paying his wife dower, does not mean he has no need to pay her maintenance both are different.

A widow can not claim for maintenance against the parents of her husband because she has inheritance's right in the deceased property. Therefore maintenance is given o women for their better life as a right.

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